Ninth Circuit Says Trump Can Sic National Guard On Portland, But Don't Expect Troops Vs. Frogs Just Yet

Eventually the Supremes will let Trump bring war to America's peace-ravaged cities.

Video screenshot, KPTV on YouTube

On Monday, a three-judge panel of the Ninth Circuit Court of Appeals ruled 2-1 to stay a federal judge’s temporary restraining order preventing Donald Trump from deploying the Oregon National Guard to Portland to finally bring war to the peace-torn city. But there’s still a lot of legal wrangling likely before Trump can actually send troops to quell the violent unrest that’s only happening in rightwing fantasies.

That’s because the Ninth Circuit only considered a Justice Department appeal of the first of two restraining orders issued by US District Judge Karin Immergut. The first one blocked Trump from deploying the Oregon National Guard against the will of Oregon Gov. Tina Kotek; Immergut issued a second order later the same day after Trump and Defense Secretary Pete Hegseth tried to pull an end run by ordering troops from the California and Texas National Guards to Portland. Immergut ordered that no federalized troops from any state could be sent to Portland, because there’s simply no emergency there to justify such action. California also joined the case as a plaintiff, because hell no to forcing its Guard to deploy to another Left Coast state.

In their decision, the two Trump-appointed appeals judges who made up the majority (even with random assignments, that’ll happen) said that Immergut’s two restraining orders both “rise or fall together” because they’re based on similar legal reasoning.

But the third member of the panel, Judge Susan Graber, “strenuously” dissented (page 58 of PDF), saying that if the administration wanted the ability to send troops from other states, it jolly well had to appeal the second order as well, so “The government will remain barred from deploying the National Guard.” And no, the DOJ still hasn’t appealed the second restraining order, although on Tuesday the lazy dipshits filed a motion asking Immergut to dissolve or stay it. An appeal is the only way the administration can attempt to show it will be “injured” if not allowed to deploy Guard troops from one state to another, so it’s really not a trivial question.

In her dissent, Graber noted, as did Immergut, that the conditions of the federal law enabling deployment of troops — a foreign invasion, domestic rebellion, or the inability to enforce federal law by regular means — simply do not exist in Portland. Also, in a reminder that judicial writing is very much worth reading, she added that Portland is nothing like a warzone, given “Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE[.]” [bold added by Yr Wonkette.]

Beyond that, Graber, a Clinton appointee, also called on the full Ninth Circuit to take up the case and to “vacate the majority’s order before the illegal deployment of troops under false pretenses can occur,” a somewhat unusual but perfectly cromulent request. And not long after that, Graber formally requested a vote by the other 29 judges of the appeals court on whether an en banc panel (11 judges, since the entire court is so huge) should rehear the case. Briefs from both the feds and from the plaintiffs — the State of Oregon and the City of Portland — are due by midnight Pacific time Wednesday.

Over at Lawdork, Chris Geidner offers a nice, detailed examination of just how sloppy and “careless” the majority order is, and we’ll urge you to read his analysis without getting into it too much ourselves. Because ew, writing about opinions by Trump appointees — especially the shambolic concurring opinion by one of them — should be left to professionals like Geidner.

And while those details may matter in the long run, the more immediate effect is that if the judges of the Ninth Circuit vote to rehear the case, that will likely slow down any new attempts to surge troops to Portland. U of Washington Law professor Jeff Feldman explained to the Oregonian (archive link) that if an en banc panel — Chief Judge Mary Murguia and 10 randomly chosen judges — rehears the case, the judges might want additional briefs from the parties, and could hear new oral arguments, all of which could take a while.

In the meantime, there’s that DOJ request for Immergut to make her second restraining order go away, on which she may or may not take action. She’s likely to wait on the vote by the Ninth Circuit on whether to rehear the case (which is about the first restraining order, remember). And if it decides to reconsider the three-judge ruling, she would almost certainly freeze the status quo — no troops from anywhere in Portland — until the matter is decided.

Finally, lurking in the background is a second appeals court decision, this one by the Seventh Circuit, where a three-judge panel upheld the restraining order issued against troops in Chicago earlier this month by US District Court Judge April Perry, who like Immergut found that no, protests aren’t a rebellion, you assholes. The Trump administration has now appealed that decision up to the US Supreme Court, which hasn’t been keen to tell Trump no, and has repeatedly used its “emergency” docket to roll back temporary restraining orders while cases proceed in lower courts, effectively letting Trump do anything he wants, without even saying why.

As lawblogger and actual appellate attorney Jay Kuo explains, if the Supremes use the shadow docket to overturn Perry’s restraining order, that would be a truly chickenshit decision (our words in case you’re wondering) that would “give Trump room to act in a legal gray zone.”

If the Court doesn’t explain itself, no one will know whether the majority disagreed with Perry’s decision because of a technical question, such as legal standing of the parties, or whether it believes the entire question of whether the president can deploy federal troops is a political one that cannot be decided by the courts.

If the Supremes put off a real decision on the merits, that would once again leave Trump free to deploy the military against American cities. If the troops start acting in a law enforcement capacity, that could invite still more legal pushback via civil lawsuits like the one that found Trump’s troop deployments in Los Angeles violated the Posse Comitatus Act.

And of course Americans will continue pushing back by wearing ridiculous costumes, nonviolently protesting, and holding up for mockery the very idea that opposition to Trump is “terrorism,” all of which will hopefully help the military decide, correctly, that orders to shoot us must be refused.

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[Oregon Public Broadcasting / Guardian / Law Dork / Oregon v. Trump decision / Oregonian (archive link) / The Status Kuo]

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